Common belief holds that Hank's case against Walt in Breaking Bad is composed almost entirely of circumstantial evidence. He seeks a statement from Skyler, telling her that he has "bits and pieces" but needs her help to get the whole picture. Hank is limited by what he's been able to piece together from several case files, but we, as viewers, have seen the story entire. With that in mind, what does Hank know, and is it enough to put Heisenberg away for good?
Let's recap: Hank's investigation started with Krazy-8 and his cousin Emilio, the first big break for Walter White. As Hank revealed, he was a DEA informant that would sell out the competition and then scoop up their clientele. His last piece of information was on Captain Cook (and his cousin Emilio, just for completion's sake). As we know, Captain Cook was Jesse Pinkman. At the scene of their disappearance, Hank found Krazy-8's car, evidence of a meth cook, and a gas mask from Walt's school. This led him to investigate Walt's chemistry storeroom, where he found a massive amount of beakers and flasks missing. He jokes with Walt about people beginning to suspect him, and then makes an arrest in the form of "Huge" Hugo, the janitor who happened to have a small amount of marijuana in his car.
From there, Gonzo and No-Doz, Tuco's henchmen of dubious intelligence, were brought to Hank's attention. While investigating Tuco, he discovers Jesse Pinkman's car and hauls him in for questioning. Unfortunately, he doesn't manage to make anything stick before Jesse slips free. But then he catches a break. Brandon "Badger" Mayhew gets caught trying to sell Blue Sky to an undercover police officer, and agrees to sell out Heisenberg. Unfortunately again, Walt and Jesse, through Saul Goodman, have hired James Edward Kilkelly, a man who likes prison more than freedom, to take the fall for him. Hank's investigation is stymied yet again.
But then, dropped right into his lap, is Gale Boetticher. Here at last, he catches a big break. And, with help from Walt, comes to the conclusion that Gale wasn't Heisenberg, merely aping his work. From there, he gets on the trail of Gustavo Fring, and blows that whole operation out of the water. He even finds the laundry that housed the superlab, though Walt drives them into traffic to keep him from discovering it.
And then, after Gus's death? The laptop is wiped clean. Michael Ehrmantraut stonewalls their every attempt at intimidation and finally drops off the map. Then, Walt orchestrates his masterpiece and murders every witness they had slated to testify. Finally, of course, he gets his luckiest break of all and finds the link between Walter White and Gale Boetticher — the copy of Leaves of Grass inscribed in Walter White's bathroom.
Then, of course, there's the spectacular(ly comical) break-in at the chemical factory. Jesse and Walt manage to steal an entire oil drum of methylamine, and also get themselves filmed doing it. Hank watches it again with fresh eyes after catching on to Walt, and you can see the realization in his eyes.
In short, it's been a long string of close-calls and near-misses, with each move hampered by Walt. In hindsight, Hank's able to spot the breadcrumbs. But will he be able to put them together? The pieces are there to be put together, there's no doubt about that. All it's going to take is a little police work. And Hank Schraeder's shown he's not averse to a little leg work. Even when his legs didn't work.
To make sense of all this, we called up former federal prosecutor Moe Fodeman, -- now on the other side, defending those accused of white collar crimes. He's seen plenty of action over the years, including U.S. vs. Ronnell Wilson, who was tried for murdering two NYPD offers in a botched illegal-gun buy, and prosecuting renowned defense lawyer Robert Simels for conspiring to silence witnesses through money and violence. Here, Foderman weighs in on Hank's chances of capturing the elusive Walter White.
1. Hank should know: Circumstantial evidence can be a powerful tool.
"Prosecutors tell jurors all the time that circumstantial evidence can be more powerful than direct evidence. Direct evidence is evidence that someone saw something, heard something, or smelled something. Circumstantial evidence is evidence that requires one to make an additional leap about the significance of that evidence. You're offering some fact and from the fact, you're asking a juror to draw an inference. Judges frequently explain the difference to jurors this way: Direct evidence is "I saw it raining." Circumstantial evidence is you're in a closed courtroom and someone walks in with a soaking-wet umbrella. You didn't see it raining, no one told you it was raining, but it's a pretty good inference to make that it's raining out. It's an easy leap. A defendant's finger prints at the scene of the burglary can be strong circumstantial evidence that the he committed the burglary — after all, why else would his fingerprints be at the scene? But if the defendant had been a guest in the apartment before, the evidence of his fingerprints being in the apartment isn't nearly as significant, and the inference that he's the burglar is much weaker. Bottom line is that circumstantial evidence can be weak or powerful. It all depends on how strong is the evidence the fact exists and and how strong is the inference to be drawn from that fact."
2. The handwriting connection lacks science ... which Breaking Bad is wholly concerned with.
"As a prosecutor, I used handwriting experts a lot and it's routinely admitted in court. But it's not science like DNA. The expert is making a judgment as to whether two writings are a match or not. So the first question is: Is it a match? The second question is, if you believe that it is a match, what is the significance of the fact that this handwriting matches? Just like the fingerprints at a crime scene, a handwriting match can be incredibly significant, or it can be irrelevant depending on the circumstances."
3. The only person left who could flip on Walt is Pinkman. Hank needs Jesse to turn if he wants this method of prosecuting.
"Federal criminal cases are often made by using accomplice testimony. Agents get the goods on one guy, convince him that the only way to save himself is by cooperating with law enforcement and testifying against his partners in crime. Once the 'cooperator,' as they're commonly referred to in the business, flips, then the rest of the case is about corroborating the cooperator's story and showing the jury this admitted criminal isn't just making stuff up about the defendant to save his own skin. That's a typical federal case. The problem for law enforcement is it's not always to easy to get the goods on the first guy, and even when you do, it's sometimes even harder to get a criminal to switch teams."
Advantage: Hank (only if he can get Jesse to turn)
4. Hank's little breadcrumbs could be enough to bring Walt down.
"Not all criminal cases have an accomplice, or an eyewitness, pointing the finger at the defendant saying that's the man who did it. Sometimes, prosecutors prove their case by piecing together pieces of circumstantial evidence which, when taken collectively, establish guilt. Maybe there's an innocent explanation for one of these facts, maybe two of them, prosecutors argue, but, at some point, coincidence after coincidence after coincidence has to be proof beyond a reasonable doubt. These little pieces of a puzzle would never all point at the defendant unless he was in fact guilty. No eye-witness, no one saying I did it with this guy, but little pieces that all add up. That can be a powerful case and people are convicted of it all the time. Just ask Scott Peterson — he's on death row for killing his wife and nobody testified they saw him do it. But between the inconsistent stories to the police and family members, strange behavior after the crime, an affair with another woman, other pieces of evidence, prosecutors convinced a jury that taken together, it proved him guilty."
5. Walt's hands-on, small-operation approach could be his demise.
"Usually a high-level, successful drug-lord is never getting his hands dirty. He's not handling drugs or money himself. You're not going to have him delivering drugs to an undercover officer or informant, and you're not going to catch him on surveillance video with drugs or money. If he's good, he's only dealing with his top lieutenants and those closest to him. These drug lords are smart. They insulate themselves so they're not interacting with the whole organization. They're ultra-careful on the telephone and change their phones frequently, in case law enforcement is listening. Usually, in the end of the day, to get the highest-level people in a drug organization, it goes back to getting an insider to flip."
6. Walt's cover-ups and pattern of weird behavior could easily come to bite him in the ass.
"Some of the most powerful evidence in a criminal case can be a defendant's attempt to cover his tracks and obstruct the investigation. I was involved in an insider-trading case recently where soon after a defendant learned he was under investigation, the FBI surveilled him eating his cell phone's SIM card. You generally don't do that unless you did something wrong. A suspect's change in behavior, his attempts to conceal evidence, or obstruct the investigation in some way, can be strong circumstantial evidence of guilt. It's not the behavior of an innocent person."
Conclusion: After listening to an actual expert break down how cases really operate, it's clear that Hank has more than enough pieces to bring down Walt, the video surveillance tape being a pretty damning piece of evidence. But how Hank goes about collecting all these nuggets will be telling for Walt's future. It's the family connection that's going to make it tough for Hank; as much as Breaking Bad is a show about morality, power, becoming evil, and mortality — it's rooted in familial loyalty in strange, roundabout ways.